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15 July 2011

The Copyrightability of Tattoos

Post-Hangover II, the issue of the copyrightability of tattoos has been in the news. Perhaps, taking a cue from this, Shah Rukh Khan reportedly took steps which have caused him to become the first celebrity to register a tattoo in his name: the tattoo he sports in the film ‘Don 2’. If the reports are to be believed, the actor has obtained a copyright registration and not a trademark registration for the artwork in the tattoo.

While, in Shah Rukh Khan’s case, this may work for him (presumably he’s acted on solid legal advice), the fact that, if the reports are accurate, the Indian Copyright Office has registered a tattoo at all could raise deeply problematic issues. There is nothing in the Indian Copyright Act, 1957, which precludes the registration of tattoos or states that tattoos are not copyrightable. Nonetheless, according copyright protection to a tattoo means that the provisions of the statute would apply to it, and in some respects, it is extremely difficult to understand how it would be possible to apply the Act at all.

As a general rule, the ownership of a work itself (as opposed to the ownership of copies of the work) and the ownership of copyright in that work are very closely associated. However, as far as tattoos are concerned, it would become essential to completely delink the ownership of the work from the ownership of the copyright in the work, as not doing so could raise a number of problems. Some of these problems are discussed below (along with general problems relating to the copyrightability of tattoos). These issues may not be especially consequential in the case of temporary or stick-on tattoos but would come into play with reference to real, permanent tattoos.

Ownership: Usually, under Section 17 of the Copyright Act, the person bearing a tattoo would be the owner of the copyright in the work considering that a tattoo would generally be a commissioned work. However, this is subject to a contract to the contrary, and it isn’t difficult to imagine that more well-established tattoo artists, in particular, would be conscious of a desire to retain the copyright ownership of their art work. What this means is that should persons getting tattoos be asked to sign waivers, in the manner in which hospital patients are asked to, and should those waivers include assignments of copyright, or acknowledgements that the copyright belongs to the tattoo artist, the result could well be that a person getting a tattoo would wind up sporting intellectual property belonging to someone else. (Let's be honest, few of us ever read boilerplate contracts.)

Another possible situation is where a person desiring a tattoo chose one from the tattoo-artist’s oeuvre. In such a case, the copyright in the artwork of the tattoo could belong to the artist even without a waiver/assignment signed by the person on whom the tattoo were drawn. This is because the artist would probably own the copyright in his own oeuvre, and the tattoo itself could be treated as a derivative work which the tattooed person merely had a licence to sport.

To have on one’s body IP which another person owns and has the right to control raises the question of just how it would be possible to exercise this “right of control”.

Rights: The rights contained in the so-called copyright bundle are defined under Section 14 of the Copyright Act. With regard to artistic works which would presumably include tattoos, under Section 14(c)(ii), it is the right of the copyright owner to “to communicate the work to the public”. Note that this provision does not refer to copies of the work but to the work itself. Considering that a tattoo would literally be on the person of a human being, one can only imagine how it would be possible for a copyright owner to exercise this right, if at all. It is unlikely that any court would support a copyright owner who claimed that he had the right to control how he would “communicate the work to the public” as this would also necessarily involve controlling another person’s activities and body by default. As such, it would probably not be possible for a copyright owner to exploit/enjoy all the rights granted by the Copyright Act in respect of artistic works if those works happened to be tattoos.

Transfers of rights: The necessity of curtailing the manner in which copyright in a tattoo could be exploited would also necessarily affect transfers of copyright. A transfer of the copyright in a tattoo by way of assignment, for example, would have to be a transfer on paper as it would never be possible to physically hand over the possession of the work itself. Slavery was outlawed a long time ago.

Assignor’s rights: Under Section 19A of the Copyright Act, “if an assignee fails to make sufficient exercise of the rights assigned to him, and such failure is not attributable to any act or omission of the assignor, then, the Copyright Board may, on receipt of a complaint from the assignor and after holding such inquiry as it may deem necessary, revoke such assignment.” What would constitute sufficient exercise of assigned rights as far as a tattoo is concerned is debatable. Not displaying a painitng to the satisfaction of the artist does not amount to the insufficient exercise of assigned rights. However, there is no basis on which to opine that the complete non-exhibition of artwork would also not amount to the insufficient exercise of assigned rights.

If one were to look at a complete assignment of all copyright in a tattoo:

Considering that any exhibition of an assigned work would be impossible (although the exhibition of photographs of the work may be possible) it is impossible to determine how 19A of the Copyright Act would apply to tattoos.

Under Section 56 of the Indian Contract Act, 1872, impossible agreements are void, as are agreements with illegal objects (under Section 24), and ambiguous agreements (under Section 29). As such, assuming the transfer deed contained a coherent severability clause, it may be possible to consider the grant of the right "to communicate the work to the public" in a complete copyright assignment to be void. In the absence of a severability clause, the non-exhibition of the work/tattoo could have the potential to vitiate the entire assignment particularly if the other rights assigned were also not exploited. (It’s another matter that any attempt by an assignor to have copyright revert to him on the ground of non-exhibition of the work would probably not be successful.)

Infringement: If the design of a tattoo were found to be infringing, among other things, provisions in the Copyright Act such as those relating to the delivery up of infringing copies, and the power of police to seize infringing copies of a work would probably not be amendable to application/implementation given that the infringing copy would be on the body of a human being.

Author’s moral rights: Independent of copyright, the author-artist of the tattoo would have the right to integrity in respect of his work. Section 57 of the Copyright Act defines this as the right “to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation.” Whether or not the removal of a tattoo would qualify as the violation of an author’s right to integrity has never been tested in an Indian court.

And of course, this discussion assumes that the tattooist (who does the actual tattooing) is the same as the tattoo artist (who designs). There would be a fresh set of complications if the tattooist and the designer of the tattoo were different people.

Merchandising

Although in the case of a temporary or stick-on tattoo, many problems relating to copyright law may not be particularly relevant, it is pertinent to note that copyright law may not aid the merchandising of manufactured products based on a copyrighted work beyond a point.

Section 15(2) of the Copyright Act states that “Copyright in any design, which is capable of being registered under the Designs Act, 1911 (2 of 1911), but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his license, by any other person”. Thus, unless the merchandising is restricted to extremely limited editions of products (i.e. editions of less than fifty each), copyright may not be applicable at all.

Therefore, instead of registering a copyright, it may be more beneficial to register for trade mark protection. Presumably, it would be possible to register a device mark for artwork used/intended to be used in the course of business. Although not a conventional application of trade mark law, drawing from the fact that this is the strategy which Frederick Warne appears to have employed to protect Beatrix Potter’s art work after the expiry of copyright in it, registering a trade mark or at least availing trade mark protection for the artwork used in a tattoo should not be impossible.

(Note: I’m not really into trade marks, so there’s a chance that I’m off-track regarding possibilities under trade mark law).

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